- Date: 14th century
- 1 : the quality of being discreet : circumspection; especially : cautious reserve in speech
- 2 : ability to make responsible decisions
- 3 a : individual choice or judgment <left the decision to his discretion>
- b : power of free decision or latitude of choice within certain legal bounds <reached the age of discretion>
- 4 : the result of separating or distinguishing
In the criminal justice system, police, prosecutors, judges, and the jury are often able to exercise a degree of discretion in deciding who will be subject to criminal penalties and how they will be punished. For example, the police officer may decide whom to formally arrest for an offense. For a traffic violation, a police officer may simply issue a warning. A prosecutor may choose to pursue the same or different charges against the person a police officer has arrested. Discretion gives the prosecutor the power to dismiss a case against an arrestee based on factors such as the probability of conviction, the nature of the offense, the characteristics of the offender, and availability of adequate civil remedies. Plea bargaining also plays a major role in determining charges.
The exercise of discretion by judges is an inherent aspect of judicial independence under the doctrine of the separation of powers. The standard of review applied to appeals from decisions involving the exercise of judicial discretion is "abuse of discretion."